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No recount in USD 247 Special Election - KOAM TV 7

No recount in USD 247 Special Election

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Cherokee, KS - On Wednesday morning the Crawford County Clerk's Office confirmed there will not be a recount following last week's USD 247 Special Election. The election to determine whether or not USD 247 would be able to collect Capital Outlay was close enough that the provisional ballots had to be counted Monday morning. The final results - Yes-723, No-699. Opponents of the resolution then had until 5 p.m. on Tuesday to determine if they wanted to front the money for a recount. That deadline was allowed to pass.

An attempt to “clear the air” turned into a contested discussion Monday night at the regular monthly meeting of the USD 247 Board of Education. Crawford County Clerk Don Pyle first congratulated the school district on the outcome of the Special Election. He then said he knew there had been a lot said recently about the sharing of information from his office and the Capital Outlay tax improperly collected for the 2013-2014 school year and he wanted to address any questions the board had.

The conversation began with Pyle stating that the information in his office is public domain and all information is subject to the Freedom of Information Act and may be shared publicly. Pyle was referring to a situation that occurred in the Fall of 2013 regarding communication between Pyle and USD 247 Superintendent Glenn Fortmayer. For research purposes Dr. Fortmayer contacted Pyle requesting information on the amount of property tax the district would lose if the McCune School site and a small section of land around the site was let go from the district.

Somehow, that request for information made its way to the “Save McCune School” Facebook contact, Justin Schaffer. Schaffer then sent an email to USD 247 Board of Education President David Stricklin before Dr. Fortmayer could get the requested information to Stricklin. The email included two maps created by Schaffer of USD 247 territory being transferred to another school district – one using Dr. Fortmayer's requested information and a second, with an email statement to include Cherokee County land, showing what Schaffer projected would be needed for transfer to another district. This totaled nearly half of the USD 247 territory.

In an open session at a USD 247 BOE special meeting on August 12, 2013, Schaffer acknowledged the e-mail and the maps he sent to Stricklin but said he did not remember who gave him the information. He did say that it was not anyone from Pyle's office.

On Monday, Pyle told the USD 247 BOE that this information was public information. Dr. Fortmayer responded that it was not public information, saying the Freedom of Information Act exempts research by an agency during the “Deliberative Process”. This information is intended to provide protection during research, advice gathering and brainstorming for a future decision. Once that agency acts on such information it is then placed in the public domain. This is Exemption 5 of the Freedom of Information Act.

When hearing this Pyle replied that he had attended many training sessions and had never been made aware of the exemption.

Also, Dr. Fortmayer stated, requests for information under the Freedom of Information Act must be made in writing.

In reference to the USD 247 Capital Outlay taxes improperly collected for the 2013-14 school year, Pyle said in the budget for the school district there were lines addressing capital outlay and he goes by the budget submitted. He said his office certified the budget and instructed taxes to be collected – about $130,000.

“We aren't required to look any further to make sure the paperwork is correct or published or anything like that,” Pyle said. “We looked at all the paperwork you provided and relied on it.”

Pyle referenced unnamed sources at the state revenue office and other county clerks as being supportive of his view.

Dr. Fortmayer admitted that a clerical error had been made at the school board office, but asked why the Crawford County Clerk's Office collected the funds without verifying the district had filed the proper paperwork as required in a Kansas state statute.

KSA 79-1965 states the County Clerk must check to ensure the tax is proper before authorizing the tax to be collected and if the tax levy is not proper; the County Clerk will not proceed and will notify the district within seven days.

That notification never occurred.

Board member Sundown Jacobs asked if that meant a superintendent could simply add a tax of any amount to be collected.

Pyle did not respond.

“If the statute states you must inform me within seven days of the tax being incorrect, and you state you only go by what I say the tax is, how would it ever be possible for a situation to exist under the statute for you to notify me the tax is incorrect?” Dr. Fortmayer asked. “Why would the statute state that part if it is not required?”

Fortmayer then asked Pyle why the district was required to submit a copy of the resolution and proof of publication to the County Clerk if the clerk does not have to verify if it is correct and just goes by what the superintendent puts in the budget.

Pyle said he disagreed with Dr. Fortmayer's interpretation of the statute, again stating it did not apply because he had talked to people working in the Kansas Department of Revenue and other County Clerks and they agreed with his view.

Dr. Fortmayer disagreed and reminded Pyle that the district has no legal power to tax. School districts can request a levy to be collected, but only the County Treasurer on the direction of the County Clerk can issue and collect a tax.

Dr. Fortmayer added that none of the personnel positions that Pyle cited as supporting his view were attorneys that would interpret law. Pyle responded “neither are you”, at which point Dr. Formayer said “true, that is why she is sitting here” as he pointed to School Board Association Attorney, Donna Whiteman.

When Pyle again insisted the statute did not apply Whiteman interrupted and told him she wanted to speak directly with the attorney for the Crawford County Clerk's Office to discuss what happened and where to go from here.

Whiteman will be contacting the Crawford County Commissioner's counsel, Jim Emerson, to see if the process can be clarified.

Whiteman also informed Pyle that the school district has no authority to issue a tax or handle duties of another agency under Kansas Home Rule Statutes.

Dr. Fortmayer said on Wednesday it is USD 247's position that while a clerical error caused the good faith mistake in the budget preparation and respective request for a capital outlay tax in 2013, Kansas Statutes prohibit the School District from acting as or carrying out any duties for another agency, in this situation issuing, collecting, or deciding on the disposition of taxes.

“The statute clearly states that the County Clerk cannot certify nor direct a tax to be collected if the levy is not lawful, as in our case,” Dr. Fortmayer said. “It further states that the Clerk must amend the requested levy and must notify the taxing body at least seven days before he amends the levy – in this case either the Superintendent, the Board of Education Clerk-Business Manager, or Board of Education President. This final legally required check did not occur.”

“USD 247 has had to accept and deal with the error and make adjustments as required,” said Dr. Fortmayer. “This important safety check step at the County Clerk's Office is statutorily required to protect taxpayers, the counties, and entities such as school districts from just such mistakes.”

Dr. Fortmayer said the district wants to resolve the status of the improperly collected taxes as soon as possible for its taxpayers. He said the approximate $130,000 is in the bank, frozen from use, as the district awaits direction on what to do with the funds. He said there is precedent for the money to be credited towards this year's taxes, and USD 247 views that as the simplest solution, but by law, it cannot make the decision.

“We realize there have been mistakes made and we want to ensure this does not occur again,” USD 247 Board of Education President Greg Hite said on Wednesday. “We are hoping for a quick resolution for this matter so we can move forward for the students and taxpayers.”

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